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United States v. Angeles-Montezuma

United States District Court, E.D. Missouri, Eastern Division

October 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GUSTAVO ALVAREZ-ANGELES, Defendant.

          MEMORANDUM, RECOMMENDATION, AND ORDER OF UNITED STATES MAGISTRATE JUDGE [1]

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.

         Currently before the Court are two pretrial motions filed by Defendant Gustavo Alvarez-Angeles (“Alvarez-Angeles”), namely: (1) a Motion to Dismiss the Indictment (ECF No. 1236); and (2) a Motion for a Bill of Particulars (ECF No. 1240).[2] The government opposes both motions. (ECF No. 1280)

         RELEVANT PRODECURAL BACKGROUND

         On September 28, 2016, the Grand Jury returned a multi-count indictment alleging, among other violations, a large-scale methamphetamine trafficking conspiracy involving 39 named defendants. On October 12, 2016, the Grand Jury returned a superseding indictment which added three more defendants. Alvarez-Angeles is number 8 defendant and is charged with one count of conspiracy to distribute and possession with intent to distribute in excess of 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 846. Alvarez-Angeles was arrested on October 4, 2016, and had his initial appearance before the undersigned on the same day. Alvarez-Angeles was arraigned on October 31, 2016.

         On October 5, 2016, the Court appointed Edward Fehlig, a Spanish-speaking lawyer, to represent Alvarez-Angeles. On October 24, 2016, the undersigned issued a Scheduling Order which designated this matter a complex case within the meaning of the Speedy Trial Act, and set a status conference for December 15, 2016. (ECF No. 372) One of the purposes of the status conference was to set a “definitive schedule for the filing and consideration of pretrial motions.” (Id.) Between October 24, 2016, and December 14, 2016, the government filed three detailed notices that outlined the arguably suppressible evidence in the case. (ECF Nos. 371, 447, 642)

         Alvarez-Angeles's attorney was present at the December 15, 2016, status conference, which was conducted with attorneys only. (ECF No. 644-1) At the status conference, the undersigned discussed issues and scheduling matters concerning discovery, case budgeting, and pretrial motions. The undersigned proposed scheduling pretrial motions in three phases-(1) legal motions addressing the sufficiency of the indictment; (2) motions challenging electronic surveillance, including wiretap evidence; and (3) any remaining suppression motions or severance motions. There was no disagreement voiced regarding a phased pretrial motions schedule.

         On December 20, 2016, the undersigned issued a Scheduling Order consistent with the December 15, 2016, status conference. The December 20, 2016, Scheduling Order directed that “legal motions with respect to the sufficiency of the indictment, including any motions to dismiss, must be filed by February 1, 2017.” (ECF No. 650 at 3, emphasis in original) The Scheduling Order further provided that the failure to file timely motions “may be considered a waiver of the right of a party to make such motions or requests, as set out in Fed. R. Crim. P. 12(c)(3).” (Id., emphasis in original) The December 20, 2016, Scheduling Order set a later deadline for filing “motions directed at wiretap matters or other electronic surveillance, ” and deferred setting a deadline for any motions to suppress evidence or statements and motions to sever. (Id. at 4)

         The February 1, 2017, deadline for filing motions directed to the sufficiency of the indictment passed without any party filing any such motions or requesting any extension of time. Accordingly, on February 10, 2017, the undersigned issued a “Scheduling Order and Waiver of Legal Motions Directed to the Sufficiency of Superseding Indictment.” (ECF No. 777) In the February 10th Order, the undersigned found that each defendant had waived his or her right file legal motions pertaining to the sufficiency of the indictment, including any motions to dismiss. (Id. at 1) The February 10th Order set a March 10, 2017, deadline for filing motions directed to wiretap and electronic surveillance matters, and again deferred setting a deadline for any motions to suppress evidence or statements and motions to sever. (Id. at 2)

         On January 23, 2017, the Court received a pro se letter from Alvarez-Angeles, which was filed under seal and provided to counsel. (ECF No. 709) Generally speaking, Alvarez-Angeles's letter conveyed some concerns Alvarez-Angeles had regarding communications with his attorney. On February 6, 2017, Mr. Fehlig, Alvarez-Angeles's court-appointed attorney, moved to withdraw from his representation of Alvarez-Angeles. On February 13, 2017, after conducting a hearing, the undersigned granted Mr. Fehlig's the motion to withdraw. Alvarez-Angeles, counsel for both parties, and an interpreter were present for the hearing. Prior to granting the motion to withdraw, the undersigned confirmed with Alvarez-Angeles that he wanted a new attorney and he did not object to Mr. Fehlig's motion to withdraw. The undersigned fully advised Alvarez-Angeles that the schedule in the matter would not be adjusted to account for the appointment of new counsel. At the conclusion of the February 13th hearing, the undersigned appointed Douglas Roller to represent Alvarez-Angeles. Mr. Roller was present in Court and made aware of the Court's pretrial motion schedule, including the fact that the deadline for filing motions challenging the sufficiency of the Indictment had already passed. Mr. Roller asked for and was given the leave to file a motion to re-open the deadline for filing legal motions challenging the indictment.

         After addressing certain wiretap motions, [3] on June 27, 2017, the undersigned issued a Scheduling Order for the remaining pretrial motions, namely motions to suppress evidence or statements, and severance motions, and directed that any remaining motions be filed by August 2, 2017. (ECF No. 1088) On August 1, 2017, Alvarez-Angeles filed a motion for additional time to file any remaining motions or to file a waiver or such motions, which the Court granted. (ECF No. 1171) Alvarez-Angeles was given until August 9, 2017, to file any remaining pretrial motions. On August 9, 2017, Alvarez-Angeles filed the motions at issue herein.

         On October 16, 2017, after several continuances requested by the defense, the undersigned held a hearing at which time the parties argued the pending motions.

         DISCUSSION OF ISSUES PRESENTED

         I. Timeliness

         The government contends that Alvarez-Angeles's motions are untimely. Although Alvarez-Angeles received new counsel after the February 1, 2017, deadline for filing legal motions directed at the indictment, the undersigned has reviewed the record from the February 13, 2017, hearing, and the hearing left open the possibility that Alvarez-Angeles might seek to re-open the deadline. Alvarez-Angeles did not file any ...


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